HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 12505 of 2026 Court No. - 77 HON'BLE SANJAY KUMAR PACHORI, J. 1. Shri Balbeer Singh, learned counsel for the applicant and Shri Chhavi Pal Singh, learned A.G.A. for the State are present. Despite service of notice upon Opposite Party No. 2, None appears on his behalf. 2. The present application under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 has been filed by the applicant to quash the order dated 19.2.2025 passed by Special Judge (POCSO Act), Court No. 30, Agra in Special Case No. 4123 of 2018, arising out of case crime No. 823 of 2018, under Sections 363, 376, 328, 506, 120-B, I.P.C., Section 3/4 of Protection of Children from Sexual Offences Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station- Etmadaula, District Agra, whereby an application under Section 311, Cr.P.C. (Section 348, BNSS) has been rejected. 3. Learned counsel for the applicant submits that the impugned order has been passed without considering the facts, circumstances and position of law. It is further submitted that the application in question dated 20.11.2024 has been filed by the present applicant after death of his earlier advocate to call PW-1/victim for cross-examination after closing the opportunity of cross-examination to PW-1. 4. Learned A.G.A. has not denied the factual matrix of the case at this stage. 5. The trial court observed that examination-in-chief of PW-1 was recorded on 7.2.2023 and 22.2.2023 and the cross-examination of the PW-1 was deferred on 28.3.2023 on the basis of moving adjournment application by the present applicant. The trial court while passing the impugned order Versus Counsel for Applicant(s) : Balbeer Singh Counsel for Opposite Party(s) : G.A. Krishna Mallah .....Applicant(s) State of U.P. and Another .....Opposite Party(s) mentioned the provision of Section 33(5) of the POCSO Act wherein it is provided that the Special Court may ensure a child victim or witness is not called repeatedly to testify in court. 6. There is no other point for consideration to give opportunity to cross- examine PW-1, Victim. Due to this reason, the opportunity to hear Private- Opposite Party No. 2 is dispensed with. 7. In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014) 1 SCC 628, the Supreme Court considered the issue of fair trial observing in Para 10, which is as under: "10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013, after referring to its earlier judgments in Triveniben Vs. State of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh and Another Vs. State of Gujarat and others, AIR 2006 SC 1367; Capt. Amarinder Singh Vs. Prakash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; and Natasha Singh Vs. CBI (State), (2013) 5 SCC 741, dealt with the issue of fair trial observing: Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the 'majesty of the law' and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and NA528 No. 12505 of 2026 2 not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. xx xx xx xx Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights." 8. In the case of Natasha Singh Vs. C.B.I. (State), (2013) 5 SCC 741, the Supreme Court dealt with the scope of discretionary power of Section 311, Cr.P.C. after referring the judgment of P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242, which is as under:- "Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite: `In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.' xxx xxx xxx xxx We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old….. we are of the opinion that on a parity of reasoning NA528 No. 12505 of 2026 3 and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself." 9. In view of the above facts and circumstances, keeping in mind the settled position of law in Natasha Singh (supra) and Dr. Rajesh Talwar (supra) and without going into the merits of the case, the application is allowed. The order dated 19.2.2025 is set aside. The trial court is directed to issue summon to PW-1 for further cross-examination and the applicant is directed to complete cross-examination on first appearance of PW-1 without any unnecessary adjournment. September 29, 2026 T. Sinha NA528 No. 12505 of 2026 4 (Sanjay Kumar Pachori,J.) Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad